Black v. St. Louis & San Francisco Railroad Company

• Decision Date: 06 February 1905
• Citation: 85 S.W. 96,110 Mo.App. 198
• Parties: NEWT BLACK, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent
• Court: Kansas Court of Appeals

85 S.W. 96

110 Mo.App. 198

NEWT BLACK, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

February 6, 1905

Appeal from Barton Circuit Court.--Hon. H. C. Timmonds, Judge.

AFFIRMED.

Cause affirmed.

G. H Walser for appellant.

(1) The Kansas City, Ft. Scott & Memphis Railway Co. had the power to lease its road to the defendant and turn the management over to defendant according to the terms of the lease. R. S. 1899 secs. 1061, 1081. (2) The Kansas City, Fort Scott & Memphis Railway having been leased to the defendant, and according to the terms of the lease the defendant having taken control of same and operated same to the exclusion of the out going company it became liable to the obligations of the old company. R. S. 1899, sec. 1059; Kinion v. Railroad, 39 Mo.App. 382; Kinion v. Railroad, 39 Mo.App. 574; Evans v. Bank, 79 Mo. par. 4, p. 186; Thompson v. Abbott, 61 Mo. 176; Hughs v. School Dis. No. 29, 72 Mo. 643; State ex rel. v. Green Co., 54 Mo 540. (3) Although it may be that defendant only had a trackage right over the line from Arcadia, Kansas, but leased right from Arcadia to Kansas City. The delay at Fort Scott Olathe and other points between Arcadia and Kansas City will make defendant liable. Cherry v. Railroad, 61 Mo.App. 303.

L. F. Parker, E. P. Mann and J. T. Woodruff for respondent.

(1) It is very clear that the evidence here does not make out a consolidation as contemplated by this statute. On the contrary, the showing is that the defendant is in partial possession of the road formerly operated by the Kansas City, Fort Scott & Memphis Railroad Company, under a lease, not made by the Kansas City, Fort Scott & Memphis Railroad Company, the company against whom plaintiff makes complaint, but from another company, the Kansas City, Fort Scott & Memphis Railway Company. So the only inference to be drawn is that the company who executed the lease must, in some way or other, have acquired a right to the property from the railroad company which entered into the contract of shipment. (2) The whole evidence, and the inferences to be drawn from it, flatly contradict the idea of a consolidation under the statute, so we take it that the court, so far as this statute is concerned, was perfectly right in sustaining the demurrer on the ground that the plaintiff did not offer sufficient evidence, or any evidence, that the defendant was liable for the damages complained of by reason of any consolidation. (3) If we should go still further, and assume that the defendant had leased the railroad over which the shipment was made, from the company operating it at the time the transaction was had, this would not, of itself, constitute a consolidation, or impose a duty upon the lessee to pay the debts, or satisfy the demands for the torts of the lessor. 6 Am. & Eng. Enc. of Law, 806; Pullman v. Railroad, 115 U.S. 596; Balsley v. Railroad, 119 Ill. 68, 59 Am. Rep. 787; State v. Vanderbilt, 37 Ohio St. 638.

OPINION

BROADDUS, P. J.

The plaintiff seeks to recover damages from the defendant for the alleged failure of the Kansas City, Fort Scott & Memphis Railroad to carry certain cars of cattle from Liberal to Kansas City, Missouri, with proper dispatch, which failure it is alleged resulted in their depreciation in value and their arrival in a declining market. It was shown that said transaction was had with said mentioned railroad company on March 18, 1901. The petition was filed May 28, 1903. The first count alleges that in 1901 the Kansas City, Fort Scott & Memphis Railway Company became merged with the St. Louis & San Francisco Railroad Company, by means of which the two roads were consolidated into one company under the name of the latter. The allegations of the second count are substantially the same as in the first count. In order to show the alleged consolidation, plaintiff introduced a paper purporting to be a lease for ninety-nine years from the Kansas City, Fort Scott & Memphis Railroad Company to the defendant of its connecting railroad line. This connection includes the line of the Kansas City, Fort Scott & Memphis Railroad Company from Liberal, Missouri, to Arcadia, Kansas. The remainder of its line is located in Kansas until it reaches Kansas City. The plaintiff also introduced the station agent at Liberal, who testified that prior to October 1, 1901, he had been employed by the Kansas City, Fort Scott & Memphis Railroad Company and since that date by the defendant. Other evidence was introduced by plaintiff to sustain his cause of action but as it is practically agreed that the court sustained a demurrer to plaintiff's evidence and instructed the jury to find for the defendant on the ground that plaintiff had not shown the merger and consolidation of the two companies, including the line from Liberal, Missouri, to Arcadia, Kansas, it will be unnecessary to consider that part of the case.

Section 1059, Revised Statutes 1899, provides as follows: "Any two or more railroad companies in this State existing under either general or special laws and owning railroads constructed wholly or in part which when completed and connected in the whole or in the main, are hereby authorized to consolidate in the whole or in the main, and form one company owning and controlling such continuous line of road with all the powers, rights, privileges and immunities, and subject to all the obligations and liabilities to the State or otherwise which belonged to or rested upon either of the companies making such consolidation," etc. ...